A/HRC/29/27/Add.3
Организация Объединенных Наций
Генеральная Ассамблея
Distr.: General
12 May 2015
Russian
Original: English
Совет по правам человека
Двадцать девятая сессия
Пункт 3 повестки дня
Поощрение и защита всех прав человека,
гражданских, политических, экономических,
социальных и культурных прав, включая
право на развитие
Доклад Специального докладчика по вопросу
о насилии в отношении женщин, его причинах
и последствиях Рашиды Манджу
Добавление
Миссия в Афганистан *
Резюме
Настоящий доклад содержит выводы Специального докладчика по
вопросу о насилии в отношении женщин, его причинах и последствиях,
сделанные по итогам ее посещения Афганистана в период с 4 по 12 ноября 2014
года. В нем рассматриваются ситуация, связанная с насилием в отношении
женщин, его причинами и последствиями, меры, предпринимаемые
государством и международным сообществом в ответ на такое насилие, и
сохраняющиеся проблемы, в том числе анализируется прогресс, достигнутый
после
посещений
страны
ее
предшественниками
в
1999 году
(E/CN.4/2000/68/Add.4) и 2005 году (E/CN.4/ 2006/61/Add.5).
* Резюме настоящего доклада распространяется на всех официальных языках. Сам
доклад, содержащийся в приложении к резюме, распространяется только на том языке,
на котором он был представлен.
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
A/HRC/29/27/Add.3
Приложение
[Только на английском языке]
Report of the Special Rapporteur on violence against women,
its causes and consequences, on her mission to Afghanistan
(4–12 November 2014)
Contents
Page
I.
Introduction ..................................................................................................
1–5
3
II.
National context ............................................................................................
6–11
3
III.
Manifestations of violence against women and girls, including
its causes and consequences ..........................................................................
12–28
5
A.
Violence against women in the family...................................................
13–18
5
B.
Violence against women in the community ...........................................
19–22
7
C.
Violence against women perpetrated and/or condoned by the State ......
23–26
7
D.
Violence against women linked to the transnational sphere ...................
27–28
8
Responses in addressing violence against women .........................................
29–54
9
A.
National responses ................................................................................
31–45
9
B.
International responses ..........................................................................
46–54
13
Remaining challenges ...................................................................................
55–69
15
A.
Continuum of violence and insecurity ...................................................
56–57
15
B.
Women’s participation in decision making and peace building process
58–62
16
C.
Lack of effective implementation of legislation and its impact
on women’s access to justice and effective remedies ............................
63–69
17
Conclusions and recommendations ...............................................................
70–80
18
IV.
V.
VI.
2
Paragraphs
A.
Institutional machinery .........................................................................
71
18
B.
Law and policy reforms ........................................................................
72–75
19
C.
Women in detention ..............................................................................
76–78
20
D.
Women working in the public sector .....................................................
79
20
E.
International community .......................................................................
80
20
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I. Introduction
1.
The Special Rapporteur on violence against women, its causes and consequences,
Rashida Manjoo, visited Afghanistan at the invitation of the Government from 4 to 12
November 2014 to examine in a comprehensive manner the situation of violence against
women in the country, including violence perpetrated within the family, in the community,
in institutional settings and in the transnational sphere. She would like to thank the
Government for the cooperation extended prior to and during her visit.
2.
The Special Rapporteur is grateful for the support provided by the United Nations
country team, and especially grateful for the logistical and substantive support provided by
the Human Rights Unit within the United Nations Assistance Mission in Afghanistan
(UNAMA).
3.
During her nine-day visit, the Special Rapporteur held consultations in Kabul with
high-ranking officials of the Ministries of Foreign Affairs, Women’s Affairs, Interior and
Justice. She also met with members of parliament; representatives from the Attorney
General’s Office and the Supreme Court of Justice and other judges and prosecutors;
members of the police force, prison administration and medical staff in hospitals; and
members of the Afghanistan Independent Human Rights Commission. She also met with
the Governors and members of the local councils in Herat and Jalalabad.
4.
In addition, the Special Rapporteur held meetings with representatives of civil
society, United Nations agencies and members of the diplomatic corps. She also visited the
Badam Bagh women’s prison in Kabul, a juvenile rehabilitation centre and the burn clinic
of the regional hospital in Herat and two shelters.
5.
The Special Rapporteur is grateful to her interlocutors, including the women who
shared their experiences of survival with her. She looks forward to a fruitful and continued
dialogue with the Government and other stakeholders on the implementation of her
recommendations.
II. National context
6.
The four decades of prolonged armed conflict across the country has contributed to
significant levels of instability, insecurity, violence, rule-of-law challenges, poverty and
underdevelopment, which have obstructed the effective realization and enjoyment of human
rights for people of Afghanistan.
7.
The first visit by the mandate of the Special Rapporteur on violence against women,
its causes and consequences took place in 1999, during the Taliban era. In her report, the
mandate holder noted that discrimination against women was officially sanctioned, thus
affecting every aspect of the lives of women. In addition to the various manifestations of
violence, as commonly understood, the issuance of strict edicts banning women from
education and work, restricting their freedom of movement and imposing particular dress
codes, among others, has had a lasting and devastating impact on the lives of women and
girls. The mandate holder called for the end to the armed conflict and the establishment,
through peaceful political negotiations, of a broad-based multi-ethnic fully representative
Government that would respect internationally recognized human rights and abandon all
policies that are inconsistent with the international human rights instruments to which
Afghanistan is party. Another crucial recommendation in the report was the need for
women’s involvement in the political and peace process. The mandate holder recommended
that all parties to the conflict end the violations of the human rights of women and girls;
ensure respect for women’s right to security of the person; ensure justice and accountability
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for crimes against women; and take urgent measures to ensure the elimination of all
discriminatory legislation, policies and practices.
8.
The second visit to Afghanistan by the mandate took place in 2005, four years after
the fall of the Taliban regime. The mandate holder acknowledged that efforts to improve
the status of women had been closely linked to the challenge of multiple political and
economic transitions confronting Afghan society and, importantly, attempts to move from
the rule of power to the rule of law. She highlighted the fact that the extraordinary level of
violence against women and girls had been embedded in a traditional system of male
domination in which girls and women had no status as independent persons. She noted that
the persistence of patriarchal cultural norms and customs and the misinterpretation of
religion had been used to subjugate women and further perpetuate the cycles of violence
against them. She called for urgent measures to protect women and girls from violence and
reiterated the need to build a strong democratic inclusive State that is able to ensure an
environment of economic and social development from which women and girls would fully
benefit.
9.
Afghanistan is currently recovering from the decades of conflict and, while the
economy has significantly improved since the fall of the Taliban regime in 2001, the
country remains heavily dependent on foreign aid. Women constitute roughly 49 per cent of
Afghanistan’s population of 27.5 million, and it is estimated that around 36 per cent of the
total population lives in total poverty. In households that experience acute poverty, a young
girl may be perceived to be an economic burden and marriage into another family may
become a survival strategy to reduce economic pressures on the household. Women’s
economic participation is hindered by restrictions on their mobility and inability to gain
access to resources, markets and employment. The Government has taken positive steps
towards the empowerment of women, including through the implementation of the
Afghanistan National Development Strategy (2009-2012) and the National Action Plan for
Women Advancement. However, there remain deeply engrained structural and societal
challenges that hamper the realization of this goal, including gender discrimination and
male preference.
10.
Over the past 15 years, several legislative and institutional advances have been made
towards the promotion of human rights broadly and women’s rights in particular. These
include the creation of a national human rights institution, a ministry for women’s affairs at
the national level and departments of women’s affairs at the provincial level, human rights
units in various ministries, gender units in some ministries and the enactment in 2009 of the
landmark Law on the Elimination of Violence against Women. During the visit, the Special
Rapporteur was also informed of several law reform initiatives to be carried out over the
following year or so, including a comprehensive review of the Penal Code and the drafting
of a law to regulate the jurisdiction and functioning of jirgas and shuras (informal
communal councils).
11.
The literacy rate for adults (15 years and older) is as low as 31.4 per cent in some
areas, with an average of 17 per cent for women and 45.4 per cent for men at the national
level. Despite significant progress in the country’s education system since 2001, the
Ministry of Education estimates that about 3.5 million school-aged children are out of
school. The majority of these children are girls, children in remote areas, disabled children,
nomad children and members of other vulnerable groups. 1 Despite the Government’s efforts
to ensure education for girls and boys, social and cultural obstacles keep many girls out of
school. Even for those girls who go to school, separate toilets and the necessary facilities
1
4
See United Nations Population Fund, “Afghanistan State of the Youth Report 2014”, p. 6.
Available from http://countryoffice.unfpa.org/filemanager/files/afghanistan/2014/reports/
unfpasoayreportv333e.pdf.
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for them during menstruation are lacking in most schools, resulting in girls missing at least
a quarter of their educational life. In more remote areas, there is a shortage of female
teachers, resulting in girls in those areas foregoing their education. Teachers are sometimes
brought in from other provinces to address the shortage; however, insecurity and fear of
violence for teachers and female students while travelling to neighbouring schools serves as
a deterrent to mobility.
III. Manifestations of violence against women and girls, including
its causes and consequences
12.
The sections below illustrate the current status of the most prevalent forms of
violence against women, many of which were also identified in the mission reports of the
previous mandate holders.
A.
Violence against women in the family
13.
Violence in the family sphere, including spousal violence and intrafamily violence,
continues to affect women disproportionately. Most manifestations of violence are
underreported in the context of a patriarchal and conservative society where domestic
violence is not always perceived as a crime and is condoned by authorities that attribute the
abuse to a woman’s alleged disobedience of her husband. It is estimated that up to 87.2 per
cent of women have experienced at least one form of physical, sexual or psychological
violence, or forced marriage. More than 60 per cent of women experience multiple forms of
violence.2 A total of 4,505 cases of violence against women were registered by the joint
database of the Ministry of Women’s Affairs, Ministry of Interior and the Attorney
General’s Office from March 2012 to March 2013 in 32 provinces. 3 During the first half of
2013, the Afghanistan Independent Human Rights Commission registered 4,154 cases of
violence against women, including 1,249 cases of physical violence, 976 cases of
psychological violence, 862 cases of economic violence, 262 cases of sexual violence, and
805 cases of other types of violence. The Special Rapporteur was informed that, in the
context of marriage, rape is seldom acknowledged or reported, since women do not have
the freedom to decide whether or not to have sexual intercourse with their husband. In spite
of its prevalence, domestic violence is not explicitly classified as a crime in the Penal Code,
though it may constitute beating and laceration under articles 407 and 408. It has been
reported that, during criminal investigations of domestic violence cases, including in the
criminal and family courts, a factor often taken into account is whether the violence was a
response to a woman’s disobedience. This then results in decisions not to prosecute cases,
or in the reduction of sentences.4
14.
The legal age for marriage is 18 for boys and 16 for girls, although, under certain
circumstances, a girl may marry at the age of 15 in accordance with articles 70 and 71 of
the Penal Code. Nonetheless, early marriage practices remain prevalent. It is reported that
17.3 per cent of girls aged 15 to 19 are married. The 2010–2011 Afghanistan Multi
Indicator Cluster Survey found that 15.2 per cent of surveyed women were married before
the age of 15 and 46.4 per cent before 18.5 As noted by the previous mandate holder, the
2
3
4
5
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Ibid., p. 5.
See Ministry of Women’s Affairs, “First Report on the Implementation of the Elimination of
Violence against Women Law in Afghanistan” (January 2014), p. 1.
See United Nations Office on Drugs and Crime (UNODC) , “Afghanistan: Female prisoners
and their social reintegration, March 2007”, p. 21.
See United Nations Population Fund, “Afghanistan State of the Youth Report 2014”, p. 9.
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practices of child and forced marriages are at the root of most violence that takes place in
the household, but are also amplified in other spheres (see E/CN.4/2006/61/Add.5,
para. 23). A girl child is seen as an asset exchangeable for money or goods owing to the
practice of the bride price (ibid. para. 24). Moreover, the importance of preserving family
honour and girls’ virginity is such that parents push their daughters into marriage well
before they are ready. Poverty, as well as tradition, culture and religion, are used to justify
early and/or forced marriages without regard for the adverse effects that such practices have
on the health and well-being of the child. Girls who marry early have their first children at a
younger age. Early childbearing contributes to pregnancy-related deaths and birth
complications, which are the leading cause of mortality among girls.
15.
Some of the victims of early and/or forced marriage often resort to committing selfimmolation. Although not all women and girls who take this action intend to kill
themselves, they inflict severe injuries upon themselves, which in some cases results in
their death. The Afghanistan Independent Human Rights Commission recorded a total of
133 cases of self-immolation from March to November 2011. However, the Special
Rapporteur was unable to confirm the prevalence of this practice during her visit. At the
Burn Clinic in Herat, she was informed that there was a declining trend in the phenomenon
and that a burn injury could only be categorized as a self-immolation subject to a
confession from the victim, even if the medical evidence was conclusive.
16.
Women and girls also run away from home as a response to harmful practices,
including physical, psychological or sexual abuse, or being forced into marriage, to avoid
death at the hands of their relatives. Running away is neither a crime under Afghan law, as
there is no provision in the Penal Code that addresses the issue,; nor is it a crime under
sharia law. However, the authorities sometimes charge women and girls who run away,
with the “intention” to commit sexual intercourse outside of marriage (zina) or attempted
zina, which is considered to be a crime against God’s commands under sharia law. They
can also be charged for the crime of zina under article 427(1) of the Afghan Penal Code.6
17.
The Afghanistan Independent Human Rights Commission registered more than 280
women who had been killed by family members during 2011 and 2012. Most of these
killings had been carried out on women and girls who had refused to enter into an arranged
marriage or had been accused of having a relationship that the family considered to be
inappropriate. Given the sensitivities surrounding this phenomenon, many of the cases are
concealed, and other explanations are provided for the deaths.
18.
Some interlocutors raised concerns about the issue of incest, including when
committed against minors. The taboo nature of the crime results in victims not speaking
about or reporting the abuse. The Special Rapporteur heard the testimony of a young
woman who had been raped by her father for nearly a decade. In addition to the rapes,
threats and abuse she suffered, she had been forced to abort a number of pregnancies, but
was able to continue with one pregnancy. The victim alleged that some family members
had wanted to kill the baby to destroy evidence of sexual violence. Members of the family
were aware of the abuse, but no one intervened, out of fear.
6
6
See United Nations Assistance Mission in Afghanistan (UNAMA) and the Office of the
United Nations High Commissioner for Human Rights (OHCHR), “A long way to go:
implementation of the Law on elimination of violence against women in Afghanistan”
(December 2012), p. 22. Available from
http://unama.unmissions.org/LinkClick.aspx?fileticket=Qy9mDiEa5Rw%3D&ta .
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B.
Violence against women in the community
19.
Women are perceived as the custodians of a family’s “honour” and are seen as
“dishonouring” their families and communities when they are subjected to sexual violence.
As such, it is the rape victim who carries the shame of the crime in many cases. 7 Women
and girls who live in rural areas, unaccompanied women, widows, divorced women and
women whose husbands are away are at a greater risk of becoming victims of rape.8
20.
A significant number of rape incidents occur during armed robberies, kidnapping
and gang activity in general. A typical example includes an incident in 2014 in which seven
men dressed in police uniforms and armed with Kalashnikov rifles stopped two cars
heading into Kabul. The armed men forced the occupants out of their cars, took money and
jewellery and then proceeded to rape four women, including a pregnant woman. During a
two-hour trial in September 2014, the seven men were charged with armed robbery and
zina and sentenced to death under the provision of the 1987 Law on Crimes against Internal
and External Security, which makes banditry punishable by death. The fact that the accused
men were not charged with rape but with the crime of zina implies that the consent of the
women had been obtained.9
21.
The Special Rapporteur was concerned at the escalating level of targeted attacks
against high-profile women, particularly those working in the public sector. For instance, in
February 2015, a former journalist and member of the provincial council of Nangarhar
Province was wounded in an explosion in Jalalabad city and died a week later. In
November 2014, a parliamentarian was targeted in a suicide attack, which resulted in the
death of three individuals.
22.
Earlier in 2014, another parliamentarian was wounded in an attack when leaving her
office. Her sister, who is also a member of parliament and a prominent women’s rights
activist, was attacked in 2010. In 2013, a senator lost her daughter in an attack on her car
and a parliamentarian was kidnapped and held for several weeks before being released. In
July 2013, the highest-ranking female police officer in Helmand was shot and killed on her
way to work. In July 2012, the head of the Department of Women’s Affairs in eastern
Laghman province was killed by a car bomb as she left for work. Gunmen killed her
replacement in December 2012. These examples are illustrative of the systematic pattern of
attacks against women working in the public domain. These attacks occur with impunity
and often serve as a warning to other women who aspire to hold such positions.
C.
Violence against women perpetrated and/or condoned by the State
23.
During her visits to the Badam Bagh women’s prison in Kabul and the juvenile
rehabilitation centre in Herat, the Special Rapporteur expressed serious concern at the high
number of women and girls arrested, prosecuted and imprisoned for so-called “moral
crimes”, including adultery and premarital sex. Interlocutors stated that such convictions
were often made on the basis of minimal evidence of wrongful behaviour and that
investigations were often not properly carried out. Of the 744 female prisoners across the
country, 428 — or 58 per cent — were charged with so-called “moral crimes”.10 In the
Badam Bagh prison, where 159 women were held at the time of the visit, the Special
7
8
9
10
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See UNAMA and OHCHR, “Silence is violence: end the abuse of women in Afghanistan”
(8 July 2009), p. 21. Available from http://unama.unmissions.org/Portals/UNAMA/vawenglish.pdf.
Ibid, p. 29.
See www.hrw.org/news/2014/09/08/afghanistan-gang-rape-trial-badly-flawed.
Information provided by the UNAMA Rule of Law Unit on 5 November 2014.
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Rapporteur was informed that 90 women were in pretrial detention and 69 had been
convicted. A total of 11 girls were being held at the juvenile rehabilitation facility in Herat,
most of who had been arrested on charges of attempted zina.
24.
The Special Rapporteur noted that the women’s versions of the incidents prior to
their detention was seldom taken into account, and that women victims were often treated
as criminals by the criminal justice system, thus violating due process rights. One
interviewee alleged that, following her rape by a relative, she was sentenced to six years of
imprisonment, along with her rapist, for the crime of zina.
25.
The forced submission to virginity testing of women and girls accused of moral
crimes, including those have been raped, to gather evidence for the purposes of a
conviction, was an issue of concern raised by women prisoners.
26.
The widespread practice of harassment of female police officers by their peers and
superiors is of concern as it serves to deter many women from joining or remaining in the
police force. There are also allegations that sexual favours are often demanded in exchange
for promotions. In addition, the lack of female-only facilities, including toilets and
changing areas, further contributes to women’s vulnerability. 11 During a meeting with the
Provincial Policewomen’s Council in Herat, the Special Rapporteur was informed that most
of the cases the Council receives concern harassment, promotions and issues related to
gender-based discrimination. In an effort to prevent harassment and the undermining of
female police officers’ authority by commanders and male police colleagues, and to
integrate women as full, equal and respected professionals within the police force, the
Ministry of Interior adopted the “Strategy for the Integration of Afghan National Police
Female Personnel” in 2013. It outlines measures for recruiting more women and preventive
measures to create an enabling environment for the protection of policewomen from sexual
harassment and violence. Pursuant to Order No. 163, issued in March 2014, steps are under
way to establish a commission tasked with drafting an action plan to operationalize the
strategy. However, the strategy fails to incorporate a clear, detailed, confidential and
enforceable complaints mechanism that could lead to either disciplinary action or, if
warranted, criminal sanctions against perpetrators of harassment or abuse of authority. 12
D.
Violence against women linked to the transnational sphere
27.
There has been a significant increase in internal displacement over the past few
years as a consequence of the conflict. Other causes of displacement include generalized
violence, serious violations of human rights, natural disasters, development projects and
man-made disasters. It has been reported that, at the end of September 2014, 755,011
individuals had been internally displaced in Afghanistan. 13 Afghan internally displaced
persons do not live in camps, but in informal settlements on the outskirts of major cities.
The overcrowded living situation increases the risks of violence for women. Many of them
are subjected to domestic violence and forced marriages. Furthermore, the switch in
traditional housing conditions, including the move from rural to urban environments, have
11
12
13
8
See Oxfam, “Women and the Afghan Police” (10 September 2013). Available from
https://www.oxfam.org/en/research/women-and-afghan-police.
Inputs provided by UNAMA on progress and existing gaps in the implementation of
Security Council resolution 1325 (2000) for women and girls during 2013 and early 2014 in
the areas of prevention, participation, relief and recovery and protection , dated 30 March
2014.
UNHCR confidential report.
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an effect on women’s freedom of movement, as they cannot benefit from the protection of
their courtyards, gardens and villages.14
28.
More than 60 per cent of trafficking in women and children takes place inside
Afghanistan, while cross-border trafficking occurs in 40 per cent of the cases, for the
purposes of sexual exploitation, domestic servitude and sale of narcotics. 15 Female victims
of trafficking not only experience sexual assaults and slavery from the perpetrator, but also
are victims of honour killings and subjected to violence by their own families after being
rescued.16
IV. Responses in addressing violence against women
29.
With the adoption of resolution 1325 (2000) and six subsequent resolutions on
women, peace and security (1820 (2008), 1888 (2009), 1960 (2010), 2106 (2013) and
2122 (2013)) the Security Council outlined concrete actions to be taken by the international
community and respective Member States to address the issues of women, peace and
security. In November 2014, the Government of Afghanistan adopted its 2015-2018
National Action Plan on the implementation of resolution 1325 (2000).
30.
Since the fall of the Taliban era, the international community, including the United
Nations and international donors, has invested significant human, technical and material
resources to assist the Government in its post-conflict peacebuilding and reconstruction
efforts. Despite significant advances in the status of women, they continue to face severe
challenges in the realization of their civil, political, economic, social and cultural rights.
Prevailing insecurity and the generalized violence across the country, the existence of deeprooted conservative social norms and cultural practices and the limitations on freedom of
movement for women all contribute to women’s role in public life being limited, including
in political and peace processes.
A.
National responses
31.
The institutional framework for addressing women’s rights includes a number of
governmental bodies and institutions, both at the capital and the provincial levels, which
have similar mandates and functions. Established in 2001 by a presidential decree, the
Ministry of Women’s Affairs is responsible for monitoring, supporting and coordinating the
implementation of policies and legislation and developing and contributing to the
development of policies for advancement of women, including the adoption of the 10-year
National Action Plan for Women of Afghanistan in 2008. Under the supervision of the
Ministry, State institutions are expected to mainstream gender in their policies, plans and
activities, and ministries are encouraged to dedicate at least 30 per cent of their budget to it.
14
15
16
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See Majidi and Hennion, “Resilience in displacement? Building the potential of Afghan
displaced women”, Journal of Internal Displacement, vol. 4, No. 1 (January 2014).
Available from
http://samuelhall.org/REPORTS/Building%20the%20resilience%20of%20Afghan
%20displaced%20women.pdf.
See Afghanistan Independent Human Rights Commission, “Summary report on
investigation of causes and factors of trafficking in women and children” (July 2011).
See Afghanistan Independent Human Rights Commission, “National Inquiry Report on
Factors and Causes of Rape and Honor Killing in Afghanistan” (Spring 2013).
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The Plan commits the State to ensure the civil service comprises 30 per cent women by
2018.17
32.
While the establishment of Ministry of Women’s Affairs has been considered a
positive sign, it has not been fully able to exercise its mandate effectively, owing to such
challenges as inadequate budgetary allocation by the State; international donor funding
dependency; a lack of independence; a lack of capacity of staff; cultural norms that affect
functioning; the politicization of appointment processes; poor spatial infrastructure; and a
lack of adequate security in the workplace. The lack of substantive support by the
Government for the Ministry, in comparison with other ministries, was observed during the
mission.
33.
There are a total of 27 gender units within the different ministries. Some units are
staffed only with a gender focal point, who have no access to the Ministry’s budget and are
without a clear job description. Most of the units lack staff, office space and technical
equipment. In March 2010, the Government established the Special Violence against
Women Unit of the Attorney General’s Office to investigate and prosecute cases of
violence against women and support and assist victims throughout the process. The unit
registered 285 cases from Kabul province between March 2010 and March 2011, but filed
indictments with the courts in only 21 of those cases. More than 70 per cent of cases were
closed, archived, withdrawn or mediated owing to prevalent cultural and traditional norms.
Since then, specialized units for the elimination of violence against women have been set
up in eight provinces.12 The Ministry of Interior established family response units staffed
by policewomen throughout the country, mainly in the provincial capitals. There are 17
such units in Kabul and, as at May 2013, there were 184 units in 33 provinces. 18 The units
mainly handle domestic disputes and domestic violence and are rarely involved in
investigating cases of rape, self-immolation or forced marriage.
34.
The High Commission for the Elimination of Violence against Women is mandated
to coordinate activities among government, non-governmental institutions and related
organizations to “effectively combat violence”. It is chaired by the Ministry of Women’s
Affairs and its members include the Deputy Attorney General and the Deputy Ministers of
Interior; Justice; Public Health; Information and Culture; Education; Higher Education;
Labour, Social Affairs, Martyrs and the Disabled; and Hajj and Religious Affairs.
Membership is also open to the Afghanistan Independent Human Rights Commission, the
Head of the Special Family Court and the Head of the Afghanistan Independent Bar
Association. Commissions on the elimination of violence against women have also been
established in 32 of 34 provinces to coordinate, plan and track the implementation of the
Law.
35.
The Afghanistan Independent Human Rights Commission was established in 2002
through a presidential decree in line with the provisions of the Bonn Agreement. The
Commission consists of nine Commissioners appointed by the President for a five-year
term. It is mandated to monitor the human rights situation, promote and protect human
rights, conduct investigations into human rights violations and take measures for the
improvement and promotion of human rights nationwide. The Commission employs
approximately 600 staff working in regional and provincial offices across the country and
plays a central role in monitoring, reporting and advocating for women’s rights broadly,
including gender-based violence. The Commission works with a wide range of
stakeholders, including United Nations agencies and religious leaders.
17
18
10
See Ministry of Women’s Affairs, “First Report on the Implementation of the Elimination of
Violence against Women Law in Afghanistan” (January 2014), p. 14.
Ibid., p. 16.
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36.
Despite considerable achievements and the progress made in the area of human
rights in the country, the Afghanistan Independent Human Rights Commission continues to
face numerous challenges in achieving its objectives and implementing its activities. Owing
to the high level of insecurity, the Commission services cover just 44 per cent of the area
linked to its provincial and regional offices, and many districts are deprived of services
provided by the Commission.19 Other obstacles include a weak presence of the rule of law,
a persistent culture of impunity, high levels of corruption, abuse of power by government
officials and a weak judicial system. The human rights of women and children continue to
be undermined by reports of egregious crimes and impunity for such crimes. 20 Furthermore,
the Commission is almost entirely dependent on foreign Governments and international
organizations for funding. The lack of appropriate State-allocated budgets has affected the
planning and programmatic activities of the Commission.
37.
Following the appointment of five new commissioners and the reappointment of
four serving commissioners in June 2013, concerns were raised about the transparency of
the selection process and the Afghanistan Independent Human Rights Commission was at
risk of being downgraded from an A status institution to a B status. In addition to the
limited consultation and transparency in the appointment of commissioners, other issues
highlighted during the November 2013 review of the Commission by the International
Coordinating Committee of National Institutions for the Promotion and Protection of
Human Rights was the gender imbalance of the its staff and its insufficient State funding.
However, in October 2014, the Committee recommended that the Commission be reaccredited with an A status, which has since been done.21 The Special Rapporteur
commends the Commission for its commitment and leading role in addressing the issue of
violence against women in the country, despite the constraints and challenges it faces.
38.
In August 2010, the High Council of the Supreme Court, in approval number 572,
instructed prosecutors on how to handle “runaway” cases, by invoking article 130 of the
Constitution. According to the instruction, courts should assess whether runaway women
are single or married, the cause and motive for running away and the place to which the
woman has run. If a woman runs to escape harassment and disturbance by family members
and goes to a relative’s house, the house of a legitimate mahram (unmarriageable kin) or to
a justice institution, then this shall not be regarded as a crime from the sharia perspective.
However, if a woman goes to a stranger’s house, even if it is to escape ill-treatment, the
instruction states that she exposes herself to crimes such as “adultery and other associated
offences”, which are considered illegal under sharia law, and thus prohibited and
punishable.6 Other instructions have been issued on how to handle “runaway” cases,
including from the Attorney General’s Office. Urgent Communication No. 91/02 of 11
April 2012 requests that units for the elimination of violence against women issue
instructions to all prosecution offices not to press charges against women for “running
away” or “attempted zina” – as these are not actual codified crimes under Afghan law.
Furthermore, in December 2012, the Supreme Court sent a letter (No. 820/347) to the
Attorney General’s Office stating that running away from home to escape domestic
violence and seeking assistance from justice institutions, legal aid organizations or relatives
was not a crime and should not be prosecuted.
39.
Penalties for women convicted of moral crimes range from medium- to long-term
imprisonment. Sentences will be clarified in the forthcoming Criminal Procedure Code and
19
20
21
GE.15-09492
See Afghanistan Independent Human Rights Commission, Annual Report 2012-2013, p. 55.
See Afghanistan Independent Human Rights Commission report to the Fifteenth Annual
Meeting of the Asia Pacific Forum, 3-5 August 2010, Bali, Indonesia.
See report of the Sub-Committee on Accreditation of the International Coordinating
Committee of National Institutions for the Promotion and Protection of Human Rights
(October 2014).
11
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are expected to define short-term imprisonment as ranging from three months to one year;
medium-term imprisonment as one year to five years, and long-term imprisonment as 5 to
15 years or 15 to 20 years, depending on the crime. 22
40.
Article 17 of the Law on the Elimination of Violence against Women makes
reference to article 426 of the Afghan Penal Code, in respect of sexual assaults. If the
person against whom the crime is committed is under 18 or meets any of the other
conditions laid down in article 427, paragraph 2, of the Code, then the offender is sentenced
to a long prison term, not exceeding 10 years. In a recent case, the Kabul City Primary
Court sentenced a perpetrator to 20 years imprisonment and a fine of 1,500,000 Afs
(approximately $26,000) for rape under article 17 (2), (3) and (5) of the Law and
articles 426, 427 and 148 of the Code.
41.
The Anti-Human Trafficking and Abduction Law was passed in 2008 with the aim
of supporting the victims of human trafficking, especially women and children. Anyone
who sexually provokes or involves individuals under the age of 18 in sexual activities or
prostitution as his or her profession, or provides them with facilities for such activities, is
considered criminally liable and will be sentenced to a maximum of three years in prison. If
the exploited person is raped or forced to pederasty, the punishment can increase up to 15
years in prison. Under article 8 of Law on the Elimination of Violence against Women, the
penalty for anyone who exploits or forces an adult woman into prostitution increases to 7 to
16 years of imprisonment. If the exploited person is a child, the perpetrator is sentenced to a
minimum of 10 and a maximum of 16 years in prison. 23
42.
The Law on Prison and Detention Centres provides that, if the case of an accused
person is not finalized within 9 months, the prison administration must notify the relevant
court or public prosecutor in writing 15 days before the expiry of the term. If there is no
reply, the accused person shall be released from prison. 24 In practice, time limits and other
safeguards are seldom applied and women often remain in pretrial detention for much
longer than the prescribed period. Although article 86 of the Interim Criminal Procedure
Code makes provisions for alternatives to imprisonment while awaiting trial, it is seldom
utilized.
43.
In 2011, the United Nations Population Fund commissioned an assessment of
services provided to victims of gender-based violence by State and non-State agencies in
three pilot areas: Bamiyan and Nanghahar provinces and Kabul city. The assessment
revealed that most service providers did not have units responsible for addressing the
special needs of victims of gender-based violence. Other issues highlighted include the
capacity, quality and reach of services provided to victims; the shortage of trained female
professionals; and the lack of specialized knowledge and skills among key staff members.
Moreover, most health-care facilities did not have separate facilities for examining and
interviewing victims of gender-based violence. In terms of access to services, the majority
of service providers did not promote the services among target population groups. Service
providers often place the responsibility for starting the interaction solely on the victims or
their families. As regards the processing of cases, there is a of lack of relevant policies,
standard operating procedures, protocols and ethical and safety guidelines regulating the
treatment of victims of gender-based violence.25
22
23
24
25
12
See www.eupol-afg.eu/node/522.
See CEDAW/C/AFG/1-2, paras. 113–117.
See UNODC, “Afghanistan : Female prisoners and their social reintegration” (March 2007),
p. 23.
See UNFPA, “Assessment of services provided to victims of gender-based violence by State
and non-State agencies in pilot areas” (2011), p. 3.
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44.
Civil society is composed of both Afghan and international non-governmental
organizations. While organizations working exclusively on women’s rights are numerically
few, they are dynamic and organized. The organizations working directly with victims of
gender-based violence have to operate in secrecy, as they are viewed with hostility and
victims are often perceived as criminals. For example, shelters are viewed by many as
institutions that encourage women to leave home; to behave immorally and outside of what
is traditionally considered “acceptable” in a conservative and religious society; or as
prostitution houses; or establishments that are causing the break-up of families. Thus both
the service providers and those seeking protection are stigmatized and shunned by society.
45.
Many of the challenges that civil society organizations face are linked to the
generalized context of insecurity, which limits their presence to the least volatile areas, and
to the difficulties in accessing funding that enables sustainability. Furthermore, various
interlocutors highlighted the lack of consultation during the drafting of legislation and the
absence of participatory democracy. The Special Rapporteur was informed that legislation
is usually drafted between the Ministry of Justice and international experts and that nongovernmental organizations are only consulted in the final stages of the process, after
decisions have been made. This was a criticism that was also voiced by some State
authorities, and concerns were raised about the consequences of perceptions of the
international community and consultants owning the law-making processes.
B.
1.
International responses
United Nations
46.
The United Nations country team in Afghanistan comprises 21 United Nations
agencies, funds, programmes and offices, as well as UNAMA, which was established by
the Security Council in 2002 at the request of the Government to assist it in laying the
foundations for sustainable peace and development in the country. Through its Human
Rights Unit, UNAMA supports strategies and mechanisms for combating violence against
women, including prevention and remedial mechanisms for female victims of violence.
UNAMA is also providing support to the Ministry of Interior to implement and monitor a
policy and action plan for the protection of female staff from harassment and abuse. The
UNAMA Rule of Law Unit and the United Nations Office for Drugs and Crime are also
supporting the Government with the reform of the penal system.
47.
The United Nations Entity for Gender Equality and the Empowerment of Women
(UN-Women) has been working in Afghanistan since 2002. The agency has provided
technical and financial support to the Ministry of Women’s Affairs and civil society in the
management and operation of 13 women’s protection centres and two family guidance
centres, as well as in advocacy and awareness-raising to promote prevention of violence
against women, operation of the provincial commissions for the elimination of violence
against women and resource centres, and training of and coordination between stakeholders
concerning legal reform.
48.
In 2013, the United Nations Development Programme (UNDP) undertook a review
of the functioning of units for the elimination of violence against women in Kabul, MazarE-Sharif, Herat and Jalalabad. It recommended the establishment of a court on the
elimination of violence against women to enable the units to function effectively, in light of
the difficulties of limited management, training and resources, and a high level of
corruption or perceived corruption faced in all of the Government ministries, including the
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court system.26 Technical assistance is being provided by UNDP to relevant government
institutions to support efforts to develop and implement rights-based guidelines and
protocols regulating mediation of registered incidents of violence against women. In 2013,
the World Health Organization developed a “Gender-based violence treatment protocol for
primary health care in Afghanistan” to improve the delivery of a multi-sectorial response to
survivors of gender-based violence. Moreover, the Office of the United Nations High
Commissioner for Refugees (UNHCR) supports the implementation of the national
internally displaced persons policy and has established women’s shuras (consultations) to
enable them to voice their concerns and participate in decisions that affect their lives.
49.
While acknowledging the notable contributions of the United Nations system, the
Special Rapporteur observed some duplication of work and the need for better coordination
among the agencies in the interest of resource management, efficiency and the achievement
of a more substantive improvement of women’s rights for all Afghan women.
2.
Donor community
50.
Since the end of the Taliban era, the international community has made significant
investments towards Afghanistan’s reconstruction. The Bonn Agreement adopted in
December of 2001 led to the adoption of a national Constitution in 2004. It also led to the
increase of women’s participation in civil and political life and a commitment to respect
international human rights law through ratification of or accession to numerous
instruments, including the Convention on the Elimination of All Forms of Discrimination
against Women. The concluding resolution at the second Bonn conference in 2011
reaffirmed the human rights and fundamental freedoms enshrined in the Constitution,
including the rights of women, as well as a thriving and free civil society.
51.
The international community pledged over $67 billion at nine donors’ conferences
from 2003 to 2010. However, it is reported that international aid actually disbursed was
significantly less. In July 2012, the international community committed to directing
financial support towards Afghanistan’s economic development by providing over 16
billion dollars through 2015 and sustaining support through 2017 at or near levels of the
past decade. On 4 December 2014, the National Unity Government of Afghanistan and the
international community, along with other partners, met in London to reaffirm and
consolidate their partnership as they begin the Transformation Decade (2015–2024).
52.
Between 2002 and 2009, the United States of America was Afghanistan’s largest
donor, followed by European Union institutions, the United Kingdom of Great Britain and
Northern Ireland, Germany, Canada and Japan. The United Nations, non-governmental
organizations, the International Committee of the Red Cross and the International
Federation of Red Cross and Red Crescent Societies are important channels of delivery for
donor funds. Funding from the United States aims at providing humanitarian assistance for
families and communities affected by conflict or natural disasters; and assistance to women
that focuses on health, education, economic development, shelters, women’s rights and
political empowerment.27
53.
The funding of shelters by international donors is crucial as a long-term solution to
the housing needs of women and girls. In most developed countries, shelters are places of
temporary refuge and support for women escaping violence. The situation of women in
Afghanistan is somewhat different and women who are forced to find shelter in a safe
26
27
14
Claudia Elliott, United Nations Development Programme Consultant, “A report on the
critical areas, functions, and gaps and the ongoing work of the elimination of violence
against women units in Kabul, Mazar-E-Sharif, Herat and Jalalabad, Afghanistan” (August
2013).
See www.usaid.gov/afghanistan/gender-participant-training.
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house risk finding themselves with no way out of their situations. They do not have the
option of returning home or to their communities and thus shelters become a long-term
residential solution for women and their children. As noted by the previous mandate holder,
and confirmed during this visit, the difficulty of finding durable solutions for women who
end up in a shelter is compounded by the societal attitude towards shelters, which to a large
extent are regarded as places of doubtful reputation. There are also concerns regarding the
ability of shelters to provide protection, the management abilities of staff and the long-term
reintegration and support that is provided to women. Unfortunately, some shelters have also
been used in the past for pretrial detention, owing to the lack of female pretrial facilities.
54.
The findings of a 2008 report on aid effectiveness, which were reiterated by
interlocutors during the mission, pointed to the fact that one quarter of all aid to
Afghanistan had been allocated to technical assistance, which was intended to build
Government capacity. It was argued that much of such assistance had been wasteful, donordriven and of limited impact. Also, in the design or execution of projects, too often the
promotion of the capabilities, status and rights of women was a low priority. The report also
revealed that most of the aid had been directed to Kabul and other urban centres rather than
to rural areas, where it is most needed.28 Some interlocutors argued that, when bilateral
agreements are signed with civil society or United Nations agencies, the benefits of such
aid does not reach volatile areas, often owing to the recipients not having nationwide
coverage, as opposed to government agencies, which more often do.
V. Remaining challenges
55.
The Government of Afghanistan has taken measures to promote the rights of
women. However, given the current transitional process, characterized by a new
Government, a growing budget deficit and the withdrawal of international troops, the
Special Rapporteur expresses her concern about the promotion and protection of women’s
human rights, including accountability for all acts of gender-based violence. In addition to
the generalized context of insecurity, the equal participation of women in decision-making
positions and peacebuilding processes and the lack of implementation of legislation and its
impact on women’s access to justice are some of the key challenges faced by women.
A.
Continuum of violence and insecurity
56.
Afghanistan is slowly recovering from a long period of conflict, albeit with high
levels of insecurity. The consequences of conflict, poverty, underdevelopment, social
norms and practices, and the use of religion and culture as justification for control of
women in every sphere, all continue to contribute to human rights violations, with women
being disproportionately affected. It has been reported that there was a 22 per cent rise in
civilian casualties in 2014, with the highest number of women’s deaths and injuries from
conflict-related violence since 2009. In total, 556 incidents were recorded, involving 909
women (298 deaths and 611 injured). Furthermore, women who were left as sole incomeproviders after the death or injury of their husbands often experience long-term negative
social and economic consequences. Poverty forces many women to give their daughters in
marriage to repay debts or take their children out of school, often to work. Widowed
women are particularly vulnerable to other forms of violence and abuse from family and
community members.29
28
29
GE.15-09492
See Matt Waldman, “Aid effectiveness in Afghanistan” (March 2008), p. 2.
UNAMA and OHCHR, “Afghanistan annual report 2014: protection of civilians in armed
conflict” (February 2015), p. 3.
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57.
Certain areas of the country are outside of the Government’s control, and targeted
attacks against communities and high-profile women and men by anti-Government
elements, both in Government-controlled areas and other areas, are a frequent occurrence.
Politicians and policewomen also face threats and violence outside their working
environment, often from the anti-Government elements and radicals. In different provinces,
numerous women have been forced to quit their jobs or have been killed. 30
Women’s participation in decision making and peace building processes
B.
58.
As regards women’s participation in decision-making positions, under the previous
Government, women headed the Ministry of Women’s Affairs, the Ministry of Public
Health and the Ministry of Labour, Social Affairs, Martyrs and the Disabled.31 In January
2015, the president announced his 25 ministerial nominees, which included three women
nominated to lead the Ministries of Information and Culture, Higher Education and
Women’s Affairs. The number of women nominated for public office increased to four and,
in April 2015, the Afghanistan parliament approved the appointment of four women
ministers who would lead the Ministry of Women’s Affairs, the Ministry of Higher
Education, the Ministry of Labour, Social Affairs, Martyrs and the Disabled and the
Ministry of Counter-narcotics.
59.
The Constitution has introduced a quota system to ensure a minimum level of
female representation in the two houses of parliament. A minimum of two of the elected
members of the lower house from each of Afghanistan’s 34 provinces must be female. In
addition, a third of the upper house seats must be female.32 Currently, there are 69 out of
249 women in the Wolesi Jirga (lower house) and 28 female senators out of 102. 33 As
regards the representation of women in the judiciary, while there are no women in the High
Council of the Supreme Court, there are 250 female judges in both primary courts and
appeal courts throughout the country. 34 As at April 2013, there were 300 female defence
lawyers and 250 female prosecutors, including a chief prosecutor in Herat, the only woman
ever to hold such a position.35 The current Chairperson of the Afghanistan Independent
Human Rights Commission is a woman.
60.
In 2005, a former Minister for Women’s Affairs, was appointed governor of
Bamiyan. She was the first female provincial governor in Afghanistan’s history. In 2009,
the first ever female mayor was appointed in Daikundi province.36 In January 2013, the
country’s first female district governor in Faizabad district was appointed, making her the
only woman appointed among 60 district governors. Unfortunately, amendments made to
the Electoral Law in July 2013 reduced the quota for women representatives in the
Provincial Councils from 25 to 20 per cent. However, there was an increase in female
candidacy from 8 per cent in 2005 to 10 per cent in 2009 to 11.4 per cent in the 2014
elections.12
61.
In terms of the number of women operating in the security sector, it has been
reported that, as at 1 March 2014, women constituted 0.4 per cent of the Afghan National
30
31
32
33
34
35
36
16
See www.watchafghanistan.org/files/FactSheets_Women/Women_in_Security_English.pdf .
See Ministry of Women’s Affairs, “First Report on the Implementation of the Elimination of
Violence against Women Law in Afghanistan” (January 2014), p. 14.
See Peace Research Institute Oslo, “Women’s rights and political representation: past
achievements and future challenges” (Oslo, 23 November 2013).
See www.unwomen.org/~/media/8FD64A021C8840AC9AE6906D50658487.ashx.
Meeting with the Supreme Court of Justice in Kabul on 9 November 2014 .
See Ministry of Women’s Affairs, “First Report on the Implementation of the Elimination of
Violence against Women Law in Afghanistan” (January 2014), p. 15.
Ibid, p. 14.
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Army, 0.75 per cent of the Afghan Air Force, 1.3 per cent of the Afghan National Police
and 4.6 per cent of the staff of the Directorate of Prisons.
62.
Women are minimally represented in peace negotiations, and women’s rights
continue to be a low priority in the peace talks agenda. For example, out of 1,600
individuals who attended the Peace Jirga hosted by the Government of Afghanistan in June
2010, only 300 were women. In September 2010, the High Peace Council to seek peace
talks with the Taliban was formed, but only 9 out the 70 appointed members were women. 37
Furthermore, interlocutors stated that female members of the High Peace Council played a
symbolic role rather than being active participants.
C.
Lack of effective implementation of legislation and its impact
on women’s access to justice and effective remedies
63.
As regards to access to justice and accountability for gender-based crimes, while the
legal framework provides for sufficient protection for violence against women, there are
institutional, procedural and social obstacles limiting women’s access to justice. In most
instances, women do not use the formal justice system, for reasons including a lack of easy
access to the justice system, the ineffective implementation of existing legislation and the
overreliance on the informal justice system. During a meeting with representatives of civil
society and local councils in Herat, the Special Rapporteur was informed that shuras often
deal with cases of violence against women despite legislative measures such as the Law on
the Elimination of Violence against Women and the existence of institutions with a
legislative mandate to mediate such cases.
64.
The Law on the Elimination of Violence against Women is a major legal
development in the prevention and elimination of violence against women. The
Government has undertaken steps to implement and enforce the Law, including through the
establishment of specialized prosecution units for the elimination of violence against
women in some provinces and the establishment of family response units within some
police stations. However, the Law is not implemented to the same degree in the different
provinces, with particularly low levels of implementation in rural areas. In numerous cases,
mediation is conducted by jirgas and shuras, whose membership is limited to men, and
solutions are made on the basis of cultural norms rather than using the legal framework, to
ensure accountability and effective redress for the victim. Law enforcement agencies such
as the Afghan National Police and family response units have a mandate to mediate cases;
however, there are no criteria or regulations governing the conduct of mediation.
65.
Very few cases of violence against women, particularly cases of rape or sexual
abuse, are reported compared with the actual prevalence rates. Women and girls are
prevented from reporting acts of violence for various reasons, including deeply engrained
attitudes that regard domestic violence as a private matter and the treatment of victims of
sexual abuse as perpetrators of zina. Other reasons include stigma, shame, discrimination,
fear of reprisals from the perpetrators, feelings of guilt and lack of support from friends and
family. The Special Rapporteur was informed that, even when women wish to file
complaints, they are often discouraged, and when they file complaints, they are encouraged
to withdraw the case. Prosecutors often use one of the objectives of the Law on the
Elimination of Violence against Women, defined under its article 2 as the preservation of
the family unit, to mediate cases out of the formal court system. As regards protection
mechanisms, the main challenges include the insufficient number of shelters and safe
houses for women who are victims of violence and the lack of opportunities for women to
be reintegrated back into their families and society.
37
GE.15-09492
See Oxfam, “Behind closed doors” (24 November 2014), p. 17.
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66.
Other challenges to women’s access to justice include insufficient resources and
poor infrastructure and a lack of female police officers and specialized units to specifically
address crimes against women and girls. The lack of proper investigation, evidence
collection and forensic capacities further hinder women’s access to justice. The issue of
forced virginity testing to gather evidence for criminal prosecutions represents a serious
violation of women’s rights to privacy, bodily integrity and dignity.
67.
Furthermore, corruption in the criminal justice system is prevalent and represents an
obstacle to the rights of due process and fair trial, thus affecting women’s access to justice.
The Special Rapporteur was informed that bribes were often required for cases to move
through the different stages of the criminal justice system. Also, perpetrators can go
unpunished if bribes are paid to relevant officials. This creates a culture of impunity and
fosters further distrust of the formal justice system.
68.
Illegal detention and imprisonment, human rights violations in prisons and the lack
of fair and effective implementation of non-custodial sanctions continue to remain a
challenge.38 The Special Rapporteur heard numerous accounts from women in prison and
representatives of civil society who corroborated such violations.
69.
Victims of violence and representatives of civil society with whom the Special
Rapporteur met highlighted the lengthy criminal procedure, the non-respect of protection
measures and the inadequate pecuniary and detention sanctions against perpetrators.
VI. Conclusions and recommendations
70.
The Government has undertaken a number of legal and institutional initiatives
to meet its human rights obligations and to address the situation of women and girls in
the country, despite the continued political, economic, social and developmental
challenges. Political commitments to protect and promote human rights continue to be
highlighted through the Bonn process, the Kabul Conference, the Tokyo Conference
and, most recently, the 2014 London Conference. However, these commitments have
not translated into concrete improvements in the lives of the majority of women, who
remain marginalized, discriminated against and at high risk of being subjected to
violence. In light of the above, the Special Rapporteur would like to reiterate and
expand on key recommendations made by her predecessors in 1999 and 2005, many of
which remain relevant today.
A.
Institutional machinery
71.
The Special Rapporteur recommends that the Government:
(a)
Evaluate the mandate, structure and functioning of the Ministry of
Women’s Affairs and provide it with sufficient human, technical and financial
resources to fulfil its mandate;
(b)
Strengthen the independence of the National Human Rights Commission
in accordance with the Principles relating to the status of national institutions for the
promotion and protection of human rights (Paris Principles), including by ensuring
that the nomination and selection process is fair and transparent and ensuring
adequate budgetary allocations to enable it to effectively fulfil its mandate;
38
18
See UNODC, “Afghanistan: implementing alternatives to imprisonment, in line with
international standards and national legislation” (2008), p. xxii.
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(c)
Consider implementing the recommendations of UNDP as highlighted in
its review of the functioning of the units for the elimination of violence against women,
including aspects related to prosecution;
(d)
Allocate adequate human, technical and financial resources to ensure
that all criminal justice officials can fulfil their mandate, including ensuring fair and
equitable distribution of resources across the country.
B.
Law and policy reforms
72.
The Special Rapporteur recommends that the Government:
(a)
Strengthen the practice of participatory democracy, especially through
more effective consultation processes in the law-making sphere;
(b)
Prioritize the clear codification of family law and the criminal law
concerning gender-specific offences to ensure compliance with article 22 of the
Constitution, which expressly provides that men and women have equal rights and
duties before the law;
(c)
Ensure that legislation clearly specifies the obligation to register all
marriages and divorces;
(d)
Ensure that the criminal law establishes criminal liability for all parties
involved in the organization of child and forced marriages.
73.
In relation to the reform of the 1960 Penal Code, the Special Rapporteur
recommends that the Government:
(a)
Incorporate gender-specific offences, including rape, into the new penal
code. These offences should be clearly defined and the sanctions applicable to each
offence should be specified to ensure that gender-specific offences are treated with the
same degree of gravity as gender-neutral crimes. A review of all existing laws that
include criminal offenses, including the Law on the Elimination of Violence against
Women, should be undertaken to ensure consistency;
(b)
Repeal article 398 of the Penal Code to ensure that perpetrators of
honour killings are not granted legal concessions;
(c)
Revise the Criminal Procedure Code and prohibit degrading practices,
including virginity testing, as a source of evidence in criminal investigations;
(d)
Ensure that there is accountability in cases of self-immolation, including
through effective forensic and other investigations;
(e)
Reform the law pertaining to moral crimes to ensure that it incorporates
policies and directives that have been issued.
74.
In relation to the draft law regulating the jurisdiction of jirgas and shuras, the
Special Rapporteur recommends that:
(a)
Clear guidelines and policies on the use of mediation to settle disputes be
developed, including provisions on non-discrimination and sanctions for noncompliance;
(b)
The processing of a case by jirgas or shuras not preclude such cases from
being brought before the formal justice system;
(c)
All gender-based violence cases that have a criminal component be
referred to the formal justice system to ensure accountability.
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75.
The Special Rapporteur recommends that the Government repeal the
amendment to the Electoral Law so as to ensure that the quota for women
representatives in the Provincial Councils is increased.
C.
Women in detention
76.
The Special Rapporteur recommends that the Ministry of Justice, in
cooperation with the Ministry of Women’s Affairs and the Ministry of Interior,
initiate a review, including recommendations in respect of provisions in the penal and
family laws relevant to moral offences, of the files of all women and girls currently in
detention for crimes generally, and more specifically for “moral crimes”, to verify
whether:
(a)
There has been a valid court decision to sentence the detainees to
imprisonment, or in the case of pretrial detention, an order by the authority
competent under the Criminal Procedure Law;
(b)
That the women or girls have been found guilty or stand accused of
crimes expressly punishable under codified law currently in force;
(c)
process.
That the women have been given their rights to fair trial and due
77.
The Government should consider alternatives to detention and address the
question of transit houses for women who are released from detention.
78.
The Government should increase the number of shelters for victims of violence
against women; strengthen support services for victims, including counselling,
medical and rehabilitation services; provide training and skills development
programmes; assist with financial and technical support to ensure good practices and
sustainability; and develop a strategy to ensure financial support.
D.
Women working in the public sector
79.
The Special Rapporteur recommends that the Government address more fully
the safety and security concerns of women working in the public sphere, including
women politicians and police personnel, and in particular that it:
(a)
Undertake an inquiry into the allegations of harassment and abuse of
women working in the security sector across the country;
(b)
Establish and/or strengthen monitoring mechanisms both within the
Ministry of Interior and externally, to ensure that women working in the security
sector are protected from all forms of abuse, exploitation and harassment.
E.
International community
80.
The Special Rapporteur recommends that the international community,
including the United Nations and the donor community, continue to support the
Government of Afghanistan in fulfilling its duty to promote and protect the rights of
women in Afghanistan. In particular, the Special Rapporteur recommends that the
international community:
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(a)
Advocate for the inclusion of women and women’s rights issues on the
agenda of peace negotiations and set the promotion of women’s right as a target for
the provision of further funding;
(b)
Review the actual amount of funding that is currently being given
directly to the Government of Afghanistan and to local non-governmental
organizations, to enable a more precise picture of who is benefiting from aid. There is
a need to address perceptions of large amounts of funding to foreign consultants and
United Nations agencies, which are sometimes seen as wasteful and leading to a lack of
capacity-building and sustainability of local authorities and service providers;
(c)
Assist in the review of protection mechanisms, including shelters, in
order to find sustainable long-term housing alternatives for women in need of
protection. Emphasis should be placed on the empowerment of women and girls
through education, skills development and job creation.
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